(Semi-) Daily Deadline: May It Please the Court

November 16, 2011

Five and a half hours -- that's the time Supreme Court justices have set aside for oral arguments in the lawsuits against the Affordable Care Act. And you'll forgive me if I find that a little unsettling.

As readers of this space know, I've long believed that the law's individual mandate is constitutional. Yes, the Supreme Court could reach a different conclusion. The justices can say pretty much whatever they want. But if they want to render an intellectually honest verdict, I've thought, then the only way to overturn the law is to revisit and at least partly repudiate a series of key precedents.

In particular, they'd have to reject the expansive interpretation of the Commerce Clause that grew out of the later New Deal decisions, including Wickard v. Filburn. They'd also have to redraw the boundaries of the "necessary and proper" clause that Chief Justice John Marshall famously sketched out in McCulloch v. Maryland.

Last week, when Judge Laurence Silberman upheld the Affordable Care Act, he effectively said that he (and at least one of his fellow justices) was unwilling to take such drastic steps. And he was the second prominent conservative at the Circuit level to make that argument. A few weeks ago, Judge Jeffrey Sutton reached a similar conclusion. I took that as a good omen: Perhaps it meant the conservatives on the Supreme Court would do the same. Kevin Drum seems to have been thinking along the same lines.

But the lengthy time for argument also makes me wonder if the justices are thinking about tackling some very big questions -- and using this case as an opportunity to redefine substantially the limits on federal power. It'd be audacious in a way adherents of judicial restraint aren't supposed to be. And, at least in my opinion, it'd be wrong on the merits. But you could have made the exact same arguments in December, 2000, when officials in Florida were hurrying to recount ballots -- until the court stopped them.

Of course, predicting the outcome of a case like this is virtually impossible. And you don't have to take my word for it. Listen to Jeffrey Toobin, who has written about the court for many years and whose book, The Nine, is surely among the best -- if not the best -- reported books on the court ever produced.

Writing for the New Yorker, where he is a staff writer, Toobin suggests that the outcome may depend less on principle than politics, and not in the usual sense that the justices will vote their partisan leanings. Rather, Toobin says, the judges may pay attention to the country's political mood -- and tailor their votes accordingly. "If Obama looks like a lame duck at that point, it will be a lot easier for the Justices to dismantle his signal achievement," Toobin says. "If Obama looks like a winner, some on the Court may think twice about picking this particular fight with him."

I guess we'll just have to wait and see.

A programming note: I'm on a reporting trip in Texas this week. That's why the Daily Deadline has suddenly become semi-daily -- and is appearing at odd hours. I'll try to get it back on a regular schedule shortly.

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